Claimant v Y and others — 2020

The claimant presented claims alleging discrimination on the grounds of sexual orientation and disability. In relation to the third respondent, the live issue at this hearing was an allegation of victimisation arising from the grievance letter of 13 February 2019 and the handling of the appeal and grievance process. The third respondent applied to be struck out, arguing that it was an independent external consultant and not an agent of the employer for the purposes of sections 109 and 110 of the Equality Act 2010.

The tribunal did not make final findings of fact on the merits. It recorded the background that Mr AM, acting for the third respondent, conducted the appeal and grievance process, produced reports recommending that the dismissal be upheld and the grievance be dismissed, and that the first respondent followed those recommendations. The judge considered the parties' submissions on the meaning of 'agent' and reviewed the Court of Appeal decision in Kemeh v The Ministry of Defence, together with the statutory provisions in sections 109 and 110 Equality Act 2010.

Applying the strike-out threshold of whether the claim had no reasonable prospect of success, the tribunal was not persuaded that the claimant's argument had no reasonable prospect of success, albeit with some hesitation. It therefore refused the third respondent's application to strike out or remove it from the proceedings. No remedy was determined at this stage.